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Electoral Finance Act lawsuit tanks
By Steven | June 24, 2008
Was the Crown Law Office vet that found that the Electoral Finance Bill wasn’t inconsistent with the Bill of Rights Act wrong? Should the Attorney-General have reported to Parliament that the bill was inconsistent with our rights to freedom of expression? Is the Electoral Finance Act itself inconsistent with the Bill of Rights Act?
John Boscawen et al say yes. They’ve taken these issues to the High Court. But they faced a big hurdle. Would the courts even be prepared to rule on them?
The answer is no. On the first two questions – getting the courts to second guess the Attorney-General’s advice to Parliament – this should come as no surprise. The courts don’t like to trespass on Parliamentary Privilege territory.
But on the third – the issue of the consistency of the EFA itself with the Bill of Rights – I was surprised to see the High Court summarily strike out the claim. Clifford J said the Declaratory Judgments Act can’t be used to address moot points because there’s no live underlying dispute between the parties. The situation might be different, he said, if the applicants “sought declarations of inconsistency through NZBORA itself”.
The question of whether the courts might be prepared to issue a declaration or “judicial indication” that a particular statute is inconsistent with the Bill of Rights Act has been much discussed by academics (and occasionally by judges). To strike it out here, with little reasoning, on what looks like a rather technical ground, seems wrong to me.
Perhaps there will be an appeal.
Topics: Electoral speech, NZ Bill of Rights Act | Comments Off on Electoral Finance Act lawsuit tanks